Hotels, doctor and other ratings are controversial, but courts view most as free speech.

Story Highlights
• Judges weigh free speech vs. reckless comments with devastating professional consequences.
• Comments that are strictly opinion or hyperbole are often protected.
• Unsupported statements of fact can lead to liability.

When a Minnesota man felt his family was treated shabbily by a neurologist, he made sure the world knew about it.

Dennis Laurion posted caustic reviews of Minnesota neurologist David McKee, saying he was insensitive to his father’s needs and claiming that a nurse called the doctor “a real tool.” This angered McKee, who offered his own prescription: a libel suit.

The Minnesota Supreme Court found that the critical comments were protected under the First Amendment as free speech because they were just an opinion — “mere vituperation” — and dismissed the case. It was the latest in a series of fascinating cases in which judges struggle with balancing freedom of speech with the devastating professional consequences of reckless or unsubstantiated reviews.

A woman in Washington, D.C., is being sued after giving a contractor an F rating on Angie’s List and hinting that he might have stolen some jewelry. A judge ruled in January that the strongly negative review could remain online, but that the libel case could proceed.

Another Washington woman is being sued by a dermatologist after she claimed on Yelp that he scarred her face. The doctor contends the scar was pre-existing.

In 2012, a U.S. District Court threw out a lawsuit filed by a Pigeon Forge, Tenn., hotel after Trip Advisor called it “the dirtiest hotel in America” based on user reviews. Remarkably, the court concluded that the “dirty” designation wasn’t defamatory.

Last year, the Beaverton (Ore.) Grace Bible Church showed the limits of its grace, suing a former member who criticized the church online as being “creepy” and guilty of “spiritual abuse.” A judge dismissed the suit, saying these opinions were protected as free speech.

In 2011, two Scottsdale, Ariz., surgeons were awarded $12 million by a jury after a patient created a website to accuse the doctors of poor care.

Libel cases on rise

Libel cases over online comments are on the rise, perhaps inevitably in an era of impulsive tweets and anonymous comments. Nevertheless, what could be a more fundamental exercise of free speech than telling others about your negative experiences with doctors, lawyers, contractors and hotels?

Unfortunately, not all complainers can be counted on to give an accurate and fair account, and a business can be damaged irreparably by false allegations. Courts have largely found that comments that are strictly opinion or hyperbole are protected by the First Amendment, while unsupported statements of fact can lead to liability.

That probably means you can post a comment calling your lawyer a “clown” or “buffoon.” On the other hand, suggestions that your counsel is unlicensed, negligent or careless are assertions of fact and not mere insults and could land you in a courtroom. The difference: Lawyers can document they are not negligent, but none of us can really prove we’re not a clown.

Protected speech

Ironically, the federal law that protects review sites such as Yelp, Angie’s List and RateMD.com can also lead to reckless claims online. Section 230 of the Communications Decency Act protects websites from libel claims as long as they simply permit the posting of content and don’t actively control posts. If a website edits posts, weeding out vitriolic or unfounded attacks, its potential liability can be more, not less.

There’s no question that the websites rating professionals and public accommodations are a real plus for consumers. A few minutes online can help ensure that you make the right choices in terms of your health care, legal advice as well as vacation accommodations.

Even so, the hands-off administration of these sites can undercut their overall credibility. Imagine the benefits of a site that posted both constructive and critical comments and yet set standards that would weed out the intemperate in favor of the informative. Now that would be a real tool.

Ken Paulson is president and CEO of the First Amendment Center in Nashville, a former editor of USA TODAY and a member of USA TODAY’s Board of Contributors. In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.

“Online Commentator Critical Of Business Can Be Sued For Defamation, Oregon Court Says”

Aimee Green, OREGON LIVE

Thinking of posting a bad review about your latest dining experience, doctor you consulted or contractor you hired? Better think twice, if you don’t want to get sued.

That’s the de facto message the Oregon Court of Appeals sent Wednesday, when it breathed new life into a $7,500 defamation suit filed by the owner of an outdoor wedding venue northwest of Eugene. The case is among the first in Oregon to test the protections afforded to consumers who post their opinions on the Internet, including on such sites as Yelp, Google Reviews, Angie’s List, Facebook and Twitter.

Depending on your perspective, Wednesday’s ruling should be decried by anyone with a consumer gripe — or celebrated by leagues of business owners who agonize over what every negative review might do to their bottom lines.

The case at issue began in 2011, when Christopher Liles, two days after attending a friend’s wedding, posted a scathing critique of the venue on Google Reviews.

The California man, who was in Oregon for the wedding, titled his post “Disaster!!!!!” and described one of owners of the Dancing Deer Mountain wedding venue as “two faced” and “rude.” The “bridal suite,” he said, was a “tool shed that was painted pretty, but a tool shed all the same.” And Liles was irked that the owners, he said, shepherded out all guests 45 minutes early.

Owner Carol Neumann said business took a nosedive after Liles’ one-star critique, so she and her company filed suit. Her Eugene attorney, Steve Baldwin, argued that online commenters aren’t free to post false statements without repercussions and that Neumann was entitled to sue.

Liles’ attorney, however, argued that her client was simply expressing his opinion — with a whole lot of hyperbole (e.g. “The worst experience of my life!”) — which he was entitled to.

Lane County Circuit Court Judge Charles Carlson sided with Liles by throwing out the suit under a 2001 Oregon law designed to safeguard speech in public forums. It’s known as the state’s anti-Strategic Lawsuits Against Public Participation, or SLAPP, law.

A three-judge panel of the Oregon Court of Appeals, however, ruled Wednesday that Neumann should be allowed to proceed with her defamation claim because a “reasonable fact finder” could conclude that Liles posted not just his opinions but factual statements that Neumann might be able to prove are untrue.

Linda K. Williams, the Portland attorney representing Liles, said states and federal courts across the country are in various stages of determining which consumer gripes are protected and which go too far. In her research, she’s found 26 states with anti-SLAPP laws.

“It happens all of the time that businesses are outraged about a review,” Williams said. “Often times, they will sue for defamation just to shut up critics.” Williams said California’s law, which is about 20 years old, has been the most tested. And it repeatedly has protected online commenters from reviews similar to Liles’.

Williams successfully defended a man who complained online that a Pearl District dentist did shoddy work, warning future customers that if that dentist “tells you that you have a cavity — GET A SECOND OPINION.” The dentist in June 2012 sued for $300,000, but a Multnomah County judge tossed the case out.

In a case that attracted widespread attention, a jury in January failed to award any money to a Washington, D.C., home contractor who sued a homeowner for $750,000 after she posted scathing reviews on Yelp and Angie’s List about the quality of his work. She also accused him of stealing her jewelry.

But even so, new cases pop up frequently in Oregon and across the nation. “The law of defamation is trying to catch up with technology,” Williams said. Attorneys from both sides of Christopher Liles’ case agree, it’s one that will be watched in Oregon.

“There’s a lot of business people in the same boat as my clients,” said Baldwin, the wedding venue owner’s attorney.

Williams plans to ask the Court of Appeals to reconsider. And if it doesn’t, she’ll appeal the case to the Oregon Supreme Court.

Businesses take steps to fight negative online reviews of their products and services, causing some to rethink their online activity.

Parker Dozier, Senior Staff Writer,Campbell Law Observer

New technologies continue to produce novel legal questions, and one of the most recent revolves around the posting of negative product and service reviews online. Websites such as Yelp, Angie’s List, and RateMDs are seen by users as a convenient place to provide positive reviews of meals, home repairmen, and professionals, but these sites have also become a place for users to give negative reviews of their experiences.

Businesses and service providers have not reacted kindly to these virtual criticisms. Some have even resorted to legal action – and won damages – in an effort to remove the negative reviews from the internet. A 2011 Harvard Business School study found that an increase in ratings of one star (up to a possible five) on the website Yelp raises a restaurant’s revenue by five to nine percent, providing good reason for businesses to be concerned when negative reviews are posted about them online. But are lawsuits and legal threats the best approach for businesses in trying to eliminate, or at least mitigate, negative reviews?

Different jurisdictions handle these lawsuits differently, but most have been largely unsuccessful.

The spread of social media has led to expansive growth in online reviews of people’s experiences with everything from restaurants and handymen to doctors and lawyers. Though one negative review by itself probably will not harm a business, a trend of negative reviews can. Over the last five years, businesses and individuals have filed lawsuits in an effort to bring down negative posts and even, in some cases, have sought damages. Due to the novelty of the law in this area, however, and the economics of bringing a lawsuit for a single negative review, there has yet to be an outbreak of similar lawsuits.

Different jurisdictions handle these lawsuits differently, but, thankfully for online reviewers everywhere, most have been largely unsuccessful. Reviewers have the right to free speech afforded by the First Amendment, and airing their legitimate grievances over their experiences falls within their right to express their opinion. Most of the courts faced with these lawsuits have come to this same conclusion and thrown out the cases.

The Minnesota Supreme Court recently dealt with a case involving the online statements of a man whose father had been treated by a doctor. In David McKee MD v. Dennis Laurion, a man posted on various websites that when he mentioned the doctor’s name to a nurse, she called him a “real tool.” The doctor brought a defamation lawsuit against the man, but the Minnesota Supreme Court reversed the court of appeals’ reversal of the district court’s summary judgment ruling in favor of the online poster. The Court found (pdf) that calling someone a “real tool,” among other things, was pure opinion; it cannot be reasonably believed to state a fact or be found to be true or false. Because the allegedly defamatory statement was pure opinion, it was protected by the First Amendment and was not actionable.

This case provides a forecast of future cases involving negative online statements: one of the main issues will be whether the statements can be proven by the plaintiff to be defamatory. The statement must be shown to have negatively affected the plaintiff’s reputation or standing in the community. Negative statements, which are either true or pure opinion, are, however, a defense to defamation claims.

This is illustrated by Dietz Development, LLC v. Perez, a Virginia case involving a woman who was unhappy with the work of a home contractor she had hired. The contractor sued her in October of 2012 for $750,000 in damages for her online statements and pursued a preliminary injunction to have the review removed. The trial court agreed with the plaintiff and entered a preliminary injunction against the defendant, forcing her to take down certain portions of her review. Following the injunction order, the story gained traction in the media, and several organizations aided the defendant in applying to the Virginia Supreme Court for a petition of review. The Supreme Court sided with the defendant and ordered the trial court to vacate its prior order (pdf). The Court found that the contractor would still be able to pursue his defamation claim and seek damages, but an injunction was not proper because damages were still available to him.

Those businesses that believe a lawsuit is the best response to negative online reviews should consider several factors.

Those business owners and individuals who believe that a lawsuit is the best response to negative reviews online about them or their businesses should consider several factors. First, lawsuits are expensive. Is getting a review taken down or potentially winning damages worth the amount of money you will spend in court costs and lawyers’ fees? Second, businesses who sue over negative online comments could be subject to increased ridicule and even more negative online comments. For example, after the suit was filed in Dietz Development, LLC, many users voiced their disbelief via review websites over the company suing a dissatisfied customer for $750,000. These low ratings and negative comments stemming from consumers’ reactions to their legal actions, rather than poor products or services, could significantly impact the revenues of these businesses-turned-plaintiffs.

Some professionals, particularly in the medical field, attempted to use agreements or contracts that were to be signed by the patient before the doctor provided services in order to protect their reputations. Around 2010, these agreements were rapidly spreading in the medical field and were generally referred to as mutual privacy agreements. Interestingly, many of these contracts were based on a contract created by a North Carolina company, Medical Justice. The agreements stated that in exchange for the doctor not selling the patient’s name to marketers, the patient would not post anything online about the doctor or the patient’s experiences. HIPAA, however, already prevents doctors from selling patient information without their prior approval.

Late in 2011, the Center for Democracy and Technology filed a Federal Trade Commission complaint against Medical Justice for their creation of this contract. They alleged the contract was not only unethical but also an illegal prior restraint on the patients’ right to speak and unenforceable under contract law. In response to this complaint, Medical Justice, based out of Greensboro, stated that they advised everyone to stop using the contract. Since then, Medical Justice has changed their approach, now encouraging patient reviews and providing services to doctors to more effectively manage their online reputation without resorting to forcing patients’ silence.

Being more receptive to negative comments is the better policy for businesses and individuals moving forward.

Medical Justice’s change of heart and strategy regarding online reviews hopefully foreshadows the way all businesses and individuals will move forward in this area. Lawsuits trying to remove single posts probably cause more problems than they solve, as do attempts at quieting individuals before they post online. Being more receptive to negative comments is the better policy for businesses and individuals moving forward. Not only does it eliminate the bad publicity created by lawsuits and prior restraints, reaching out to aggrieved consumers can also improve both businesses’ and consumers’ experiences. Businesses can find out what they may not be doing well, while also trying to rectify bad experiences that the reviewer had, creating positive publicity instead of negative.

Finally, it is important to remember that when posting online, you should stick to the facts and your opinion. Your reviews can help not only other potential consumers but also the businesses and individuals you have reviewed in improving their products and services. Exaggeration and outright lying, however, can be defamatory and are actionable in the court of law. This is an extremely new area of the law but one that likely will continue to grow as more people post reviews online and even more rely on them in making daily decisions.

Parker Dozier was a second-year law student and serving as a Staff Writer for the Campbell Law Observer when this article was published. He graduated from the University of North Carolina at Chapel Hill in 2011, where he majored in History and Geography. Parker has been an extern at the Transportation Section of the North Carolina Department of Justice. Parker may be contacted at wpdozier0720@email.campbell.edu.